EXHIBIT 10.7
OMEGA RESEARCH, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is entered into and
effective as of July __, 1997 by and between Omega Research, Inc., a Florida
corporation (the "Company"), and ____________________ ("Indemnitee").
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the Company and its
related entities;
WHEREAS, to induce Indemnitee to continue to provide services to the
Company, the Company wishes to provide for the indemnification of, and the
advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Company and Indemnitee recognize the difficulty in
obtaining and maintaining liability insurance for the Company's directors,
officers, employees, agent and fiduciaries, the cost of such insurance and the
limited coverage of such insurance;
WHEREAS, the Company and the Indemnitee further recognize the
substantial level of corporate litigation in general, subjecting directors,
officers, employees, agents and fiduciaries to expensive litigation risks at the
same time as the availability and coverage of liability insurance is limited;
WHEREAS, the Company and Indemnitee desire to have in place the
additional protection provided by an indemnification agreement providing for the
indemnification and advancement of expenses to the Indemnitee to the maximum
extent permitted by Florida law; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified and advanced expenses by the
Company as set forth herein.
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth
below.
1. CERTAIN DEFINITIONS.
a. "Change in Control" shall mean, and shall be deemed
to have occurred if, on or after the date of this
Agreement, (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended), other than a trustee or
other fiduciary holding securities under an employee
benefit plan of the Company acting in such capacity
or a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same
proportions as their ownership of stock of the
Company, becomes the "beneficial owner" (as defined
in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing
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more than 50% of the total voting power represented
by the Company's then outstanding Voting Securities,
(ii) individuals who currently constitute the Board
of Directors of the Company and any new director
whose election by the Board of Directors or
nomination for election by the Company's shareholders
was approved by a vote of at least two thirds (2/3)
of the directors who are currently directors or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a
majority thereof, (iii) the shareholders of the
Company approve a merger or consolidation of the
Company with any other corporation other than a
merger or consolidation that would result in the
Voting Securities of the Company outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being
converted into Voting Securities of the surviving
entity) at least 80% of the total voting power
represented by the Voting Securities of the Company
or such surviving entity outstanding immediately
after such merger or consolidation, or (iv) the
shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all
or substantially all of the Company's assets.
b. "Claim" shall mean with respect to a Covered Event:
any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution
mechanism, or any hearing, inquiry or investigation
that Indemnitee in good faith believes might lead to
the institution of any such action, suit, proceeding
or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or
other.
c. References to the "Company" shall include, in
addition to Omega Research, Inc., any constituent
corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to
which Omega Research, Inc. (or any of its wholly
owned subsidiaries) is a party which, if its separate
existence had continued, would have had power and
authority to indemnify its directors, officers,
employees, agents or fiduciaries, so that if
Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation,
or is or was serving at the request of such
constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan,
trust or other enterprise, Indemnitee shall stand in
the same position under the provisions of this
Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to
such constituent corporation if its separate
existence had continued.
d. "Covered Event" shall mean any event or occurrence
related to the fact that Indemnitee is or was a
director, officer, employee, agent or fiduciary of
the
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Company, or any subsidiary of the Company, or is or
was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action
or inaction on the part of Indemnitee while serving
in such capacity.
e. "Expenses" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and
obligations incurred in connection with
investigating, defending, being a witness in or
participating in (including on appeal), or preparing
to defend, to be a witness in or to participate in,
any action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or
investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval
shall not be unreasonably withheld) of any Claim and
any federal, state, local or foreign taxes imposed on
the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
f. "Expense Advance" shall mean a payment to Indemnitee
pursuant to Section 3 in advance of the settlement of
or final judgement in any action, suit, proceeding or
alternative dispute resolution mechanism, hearing,
inquiry or investigation which constitutes a Claim.
g. "Independent Legal Counsel" shall mean an attorney or
firm of attorneys, selected in accordance with the
provisions of Section 2(d) hereof, who shall not have
otherwise performed services for the Company or
Indemnitee within the last three years (other than
with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other
Indemnitees under similar indemnity agreements).
h. References to "other enterprises" shall include
employee benefit plans; references to "fines" shall
include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references
to "serving at the request of the Company" shall
include any service as a director, officer, employee,
agent or fiduciary of the Company which imposes
duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to
an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be
in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be
deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this
Agreement.
i. "Reviewing Party" shall mean, subject to the
provisions of Section 2(d), any person or body
appointed by the Board of Directors in accordance
with
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applicable law to review the Company's obligations
hereunder and under applicable law, which may include
a member, members or all of the Company's Board of
Directors, Independent Legal Counsel or any other
person or body not a party to the particular Claim
for which Indemnitee is seeking indemnification.
j. "Section" refers to a section of this Agreement
unless otherwise indicated.
k. "Voting Securities" shall mean any securities of the
Company that vote generally in the election of
directors.
2. INDEMNIFICATION.
a. INDEMNIFICATION OF EXPENSES. Subject to the
provisions of Section 2(b) below, the Company shall
indemnify Indemnitee for Expenses to the fullest
extent permitted by law if Indemnitee was or is or
becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness
or other participant in, any Claim (whether by reason
of or arising in part out of a Covered Event),
including all interest, assessments and other charges
paid or payable in connection with or in respect of
such Expenses.
b. REVIEW OF INDEMNIFICATION OBLIGATIONS.
Notwithstanding the foregoing, in the event any
Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal
Counsel is the Reviewing Party) that Indemnitee is
not entitled to be indemnified hereunder under
applicable law, (i) the Company shall have no further
obligation under Section 2(a) to make any payments to
Indemnitee not made prior to such determination by
such Reviewing Party, and (ii) the Company shall be
entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse the Company) for all Expenses
theretofore paid to Indemnitee to which Indemnitee is
not entitled hereunder under applicable law;
provided, however, that if Indemnitee has commenced
or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination
that Indemnitee is entitled to be indemnified
hereunder under applicable law, any determination
made by any Reviewing Party that Indemnitee is not
entitled to be indemnified hereunder under applicable
law shall not be binding and (A) the Company's
obligations under Section 2(a) shall continue, and
(B) Indemnitee shall not be required to reimburse the
Company for any Expenses theretofore paid in
indemnifying Indemnitee, in either case until a final
judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee's obligation to
reimburse the Company for any Expenses shall be
unsecured and no interest shall be charged thereon.
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c. INDEMNITEE RIGHTS ON UNFAVORABLE DETERMINATION;
BINDING EFFECT. If any Reviewing Party determines
that Indemnitee is not entitled to be indemnified
hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence
litigation seeking an initial determination by the
court or challenging any such determination by such
Reviewing Party or any aspect thereof, including the
legal or factual bases therefor, and, subject to the
provisions of Section 16, the Company hereby consents
to service of process and to appear in any such
proceeding. Absent such litigation, any determination
by any Reviewing Party shall be conclusive and
binding on the Company and Indemnitee.
d. SELECTION OF REVIEWING PARTY; CHANGE IN CONTROL. If
there has not been a Change in Control, any Reviewing
Party shall be selected by the Board of Directors
and, if there has been such a Change in Control
(other than a Change in Control which has been
approved by a majority of the Company's Board of
Directors who were directors immediately prior to
such Change in Control), any Reviewing Party with
respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification of
Expenses under this Agreement or any other agreement
or under the Company's Articles of Incorporation or
Bylaws as now or hereafter in effect, or under any
other applicable law, if desired by Indemnitee, shall
be Independent Legal Counsel selected by Indemnitee
and approved by the Company (which approval shall not
be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the
Company and Indemnitee as to whether and to what
extent Indemnitee would be entitled to be indemnified
hereunder under applicable law and the Company agrees
to abide by such opinion. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel
referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of
or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision
of this Agreement, the Company shall not be required
to pay Expenses of more than one Independent Legal
Counsel in connection with all matters concerning a
single Indemnitee, and such Independent Legal Counsel
shall be the Independent Legal Counsel for any or all
other Indemnitees unless (i) the employment of
separate counsel by one or more Indemnitees has been
previously authorized by the Company in writing, or
(ii) an Indemnitee shall have provided to the Company
a written statement that such Indemnitee has
reasonably concluded that there may be a conflict of
interest between such Indemnitee and the other
Indemnitees with respect to the matters arising under
this Agreement.
e. MANDATORY PAYMENT OF EXPENSES. Notwithstanding any
other provision of this Agreement other than Section
10 hereof, to the extent that Indemnitee has been
successful on the merits or otherwise, including,
without limitation,
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the dismissal of an action without prejudice, in
defense of any Claim, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee in
connection therewith.
3. EXPENSE ADVANCES.
a. OBLIGATION TO MAKE EXPENSE ADVANCES. Upon receipt of
a written undertaking by or on behalf of the
Indemnitee to repay such amounts if it shall
ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Company under
applicable law, the Company shall make Expense
Advances to Indemnitee.
b. FORM OF UNDERTAKING. Any obligation to repay any
Expense Advances hereunder pursuant to a written
undertaking by the Indemnitee shall be unsecured and
no interest shall be charged thereon.
c. DETERMINATION OF REASONABLE EXPENSE ADVANCES. The
parties agree that for the purposes of any Expense
Advance for which Indemnitee has made written demand
to the Company in accordance with this Agreement, all
Expenses included in such Expense Advance that are
certified by affidavit of Indemnitee's counsel as
being reasonable shall be presumed conclusively to be
reasonable.
4. PROCEDURES FOR INDEMNIFICATION AND EXPENSE ADVANCES.
a. TIMING OF PAYMENTS. All payments of Expenses
(including without limitation Expense Advances) by
the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent
permitted by law as soon as practicable after written
demand by Indemnitee therefor is presented to the
Company, but in no event later than thirty (30)
business days after such written demand by Indemnitee
is presented to the Company, except in the case of
Expense Advances, which shall be made no later than
ten (10) business days after such written demand by
Indemnitee is presented to the Company.
b. NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall,
as a condition precedent to Indemnitee's right to be
indemnified or Indemnitee's right to receive Expense
Advances under this Agreement, give the Company
notice in writing as soon as practicable of any Claim
made against Indemnitee for which indemnification
will or could be sought under this Agreement;
provided, however, that no delay on the part of
Indemnitee in notifying the Company shall relieve the
Company from any obligation under this Agreement
unless (and then only to the extent) the Company
thereby is prejudiced. Notice to the Company shall be
directed to the Chief Executive
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Officer of the Company at the address shown on the
signature page of this Agreement (or such other
address as the Company shall designate in writing to
Indemnitee). In addition, Indemnitee shall give the
Company such information and cooperation as it may
reasonably require and as shall be within
Indemnitee's power.
c. NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of
this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any
particular standard of conduct or have any particular
belief or that a court has determined that
indemnification is not permitted by this Agreement or
applicable law. In addition, neither the failure of
any Reviewing Party to have made a determination as
to whether Indemnitee has met any particular standard
of conduct or had any particular belief, nor an
actual determination by any Reviewing Party that
Indemnitee has not met such standard of conduct or
did not have such belief, prior to the commencement
of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be
indemnified under this Agreement under applicable
law, shall be a defense to Indemnitee's claim or
create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any
particular belief. In connection with any
determination by any Reviewing Party or otherwise as
to whether the Indemnitee is entitled to be
indemnified hereunder under applicable law, the
burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
d. NOTICE TO INSURERS. If, at the time of the receipt by
the Company of a notice of a Claim pursuant to
Section 4(b) hereof, the Company has liability
insurance in effect which may cover such Claim, the
Company shall give prompt notice of the commencement
of such Claim to the insurers in accordance with the
procedures set forth in the respective policies. The
Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of
such policies.
e. SELECTION OF COUNSEL. In the event the Company shall
be obligated hereunder to provide indemnification for
or make any Expense Advances with respect to the
Expenses of any Claim, the Company, if appropriate,
shall be entitled to assume the defense of such Claim
with counsel approved by Indemnitee (which approval
shall not be unreasonably withheld) upon the delivery
to Indemnitee of written notice of the Company's
election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company
will not be liable to Indemnitee under this Agreement
for any fees or expenses of separate counsel
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subsequently retained by or on behalf of Indemnitee
with respect to the same Claim; provided that, (i)
Indemnitee shall have the right to employ
Indemnitee's separate counsel in any such Claim at
Indemnitee's expense and (ii) if (A) the employment
of separate counsel by Indemnitee has been previously
authorized by the Company, (B) Indemnitee shall have
reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee or any
other party being represented by counsel selected by
the Company in the conduct of any such defense, or
(C) the Company shall not continue to retain such
counsel to defend such Claim, then the fees and
expenses of Indemnitee's separate counsel shall be
Expenses for which Indemnitee may receive
indemnification or Expense Advances hereunder.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
a. SCOPE. The Company hereby agrees to indemnify the
Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not
specifically authorized by the other provisions of
this Agreement, the Company's Articles of
Incorporation, the Company's Bylaws or by statute. In
the event of any change after the date of this
Agreement in any applicable law, statute or rule
which expands the right of a Florida corporation to
indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, it is the
intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits afforded
by such change. In the event of any change in any
applicable law, statute or rule which narrows the
right of a Florida corporation to indemnify a member
of its board of directors or an officer, employee,
agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on
this Agreement or the parties' rights and obligations
hereunder except as set forth in Section 10(a)
hereof.
b. NONEXCLUSIVITY. The indemnification and the payment
of Expense Advances provided by this Agreement shall
be in addition to any rights to which Indemnitee may
be entitled under the Company's Articles of
Incorporation, its Bylaws, any other agreement, any
vote of shareholders or disinterested directors, the
Florida Business Corporation Act or otherwise. The
indemnification and the payment of Expense Advances
provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while
serving in an indemnified capacity even though
subsequent thereto Indemnitee may have ceased to
serve in such capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable
under this Agreement to make any payment in connection with
any Claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under
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any insurance policy, provision of the Company's Articles of
Incorporation, Bylaws or otherwise) of the amounts otherwise
payable hereunder.
7. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company
for some or a portion of Expenses incurred in connection with
any Claim, but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such Expenses to which Indemnitee is
entitled.
8. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee
acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from
indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken
or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to
indemnify Indemnitee.
9. LIABILITY INSURANCE. To the extent the Company maintains
liability insurance applicable to directors, officers,
employees, agents or fiduciaries, Indemnitee shall be covered
by such policies in such a manner as to provide Indemnitee the
same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a
director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company's
key employees, agents or fiduciaries, if Indemnitee is not an
officer or director but is a key employee, agent or fiduciary.
10. EXCEPTIONS. Notwithstanding any other provision of this
Agreement, the Company shall not be obligated pursuant to the
terms of this Agreement:
a. EXCLUDED ACTION OR OMISSIONS. To indemnify or make
Expense Advances to Indemnitee with respect to Claims
arising out of acts, omissions or transactions for
which Indemnitee is prohibited from receiving
indemnification under applicable law.
b. CLAIMS INITIATED BY INDEMNITEE. To indemnify or make
Expense Advances to Indemnitee with respect to Claims
initiated or brought voluntarily by Indemnitee and
not by way of defense, counterclaim or crossclaim,
except (i) with respect to actions or proceedings
brought to establish or enforce a right to
indemnification under this Agreement or any other
agreement or insurance policy or under the Company's
Articles of Incorporation or Bylaws now or hereafter
in effect relating to Claims for Covered Events, (ii)
in specific cases if the Board of Directors has
approved the initiation or bringing of such Claim, or
(iii) as otherwise required under Section 607.0850 of
the
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Florida Business Corporation Act, regardless of
whether Indemnitee ultimately is determined to be
entitled to such indemnification, Expense Advances,
or insurance recovery, as the case may be.
c. LACK OF GOOD FAITH. To indemnify Indemnitee for any
Expenses incurred by the Indemnitee with respect to
any action instituted (i) by Indemnitee to enforce or
interpret this Agreement, if a court having
jurisdiction over such action determines as provided
in Section 13 that each of the material assertions
made by the Indemnitee as a basis for such action was
not made in good faith or was frivolous, or (ii) by
or in the name of the Company to enforce or interpret
this Agreement, if a court having jurisdiction over
such action determines as provided in Section 13 that
each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was
frivolous.
d. CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee
for Expenses and the payment of profits arising from
the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor
statute.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors, assigns
(including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all
of the business or assets of the Company), spouse, heirs and
personal and legal representatives. The Company shall require
and cause any successor (whether direct or indirect, and
whether by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, of the business
or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall
continue in effect regardless of whether Indemnitee continues
to serve as a director, officer, employee, agent or fiduciary
(as applicable) of the Company or of any other enterprise at
the Company's request.
13. EXPENSES INCURRED IN ACTION RELATING TO ENFORCEMENT OR
INTERPRETATION. In the event that any action is instituted by
Indemnitee under this Agreement or under any liability
insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall
be entitled to be indemnified for all Expenses incurred by
Indemnitee with respect to such action (including without
limitation attorneys' fees), regardless of whether Indemnitee
is ultimately successful in such action, unless as a part of
such action a court having jurisdiction over such
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action makes a final judicial determination (as to which all
rights of appeal therefrom have been exhausted or lapsed) that
each of the material assertions made by Indemnitee as a basis
for such action was not made in good faith or was frivolous;
provided, however, that until such final judicial
determination is made, Indemnitee shall be entitled under
Section 3 to receive payment of Expense Advances hereunder
with respect to such action. In the event of an action
instituted by or in the name of the Company under this
Agreement to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be indemnified for
all Expenses incurred by Indemnitee in defense of such action
(including without limitation costs and expenses incurred with
respect to Indemnitee's counterclaims and cross-claims made in
such action), unless as a part of such action a court having
jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material defenses
asserted by Indemnitee in such action was made in bad faith or
was frivolous; provided, however, that until such final
judicial determination is made, Indemnitee shall be entitled
under Section 3 to receive payment of Expense Advances
hereunder with respect to such action.
14. PERIOD OF LIMITATIONS. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the
Company against Indemnitee, Indemnitee's estate, spouse,
heirs, executors or personal or legal representatives after
the expiration of one year from the date of accrual of such
cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such
one year period; provided, however, that if any shorter period
of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
15. NOTICE. All notices, requests, demands and other
communications under this Agreement shall be in writing and
shall be deemed duly given (i) if delivered by hand and signed
for by the party addressed, on the date of such delivery, or
(ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date
postmarked. Addresses for notice to either party are as shown
on the signature page of this Agreement, or as subsequently
modified by written notice.
16. CONSENT TO JURISDICTION. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts
of the State of Florida for all purposes in connection with
any action or proceeding which arises out of or relates to
this Agreement.
17. SEVERABILITY. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof
(including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent
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possible, the provisions of this Agreement (including without
limitation each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
18. CHOICE OF LAW. This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this
Agreement, shall be governed by and construed in accordance
with the laws of the State of Florida as applied to contracts
between Florida residents entered into and to be performed
entirely in the State of Florida without regard to principles
of conflicts of laws.
19. SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute
all documents required and shall do all acts that may be
necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
20. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both the parties
hereto. No waiver of any of the provisions of this Agreement
shall be deemed to be or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall
such waiver constitute a continuing waiver.
21. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth
the entire understanding between the parties hereto and
supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties
hereto.
22. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in
this Agreement shall be construed as giving Indemnitee any
right to be retained in the employ of the Company or any of
its subsidiaries or affiliated entities.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
OMEGA RESEARCH, INC.
By:
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Name:
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Title:
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AGREED TO AND ACCEPTED
INDEMNITEE:
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(signature)
Name:
Address: Omega Research, Inc.
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